R v Apps (No 2)
[2019] ACTSC 369
•20 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Apps (No 2) |
Citation: | [2019] ACTSC 369 |
Hearing Date: | 10 December 2019 |
DecisionDate: | 20 December 2019 |
Before: | Burns J |
Decision: | See [41]–[44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts aggravated robbery – plea of guilty – lengthy criminal history |
Legislation Cited: | Criminal Code ACT (2002), s 310 |
Cases Cited: | R v Henry [1999] NSWCCA 111; 106 A Crim R 149 |
Parties: | The Queen (Crown) Aren Paul Apps (Offender) |
Representation: | Counsel S Janackovic (Crown) P Bevan (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co (Offender) | |
File Numbers: | SCC 137 of 2019; SCC 243 of 2019 |
BURNS J
Aren Paul Apps, you have pleaded guilty to two counts of aggravated robbery. The first such offence [SCCAN 3739/2019] occurred on 18 October 2017. You pleaded guilty to that offence by way of joint commission with your co-offender, Toby Fisher, with the circumstances of aggravation being that you were in company and that you and your co-offender were each in possession of offensive weapons. The second offence [SCCAN 6092/19] occurred on 7 March 2019. The circumstances of aggravation with regard to that offence are that you were in company and your
co-offender was in possession of an offensive weapon, being a screwdriver.
The offence of aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), carries a maximum penalty of 25 years' imprisonment, 25,000 penalty units, or both. You were initially charged with the first aggravated robbery on 20 February 2019 in the ACT Magistrates Court and you pleaded not guilty. You subsequently failed to appear in that Court with respect to that charge on 9 April 2019, and you were later arrested on a warrant and brought back before that Court on 16 May 2019.
On 11 June 2019, you were committed for trial to this Court. On 25 September 2019, you pleaded guilty to that charge in this Court, five days before your trial was listed to commence. It cannot be said that this was an early plea of guilty. I accept, however, that it still had significant utilitarian value. I will reduce by approximately 15 per cent the otherwise appropriate sentence to reflect your plea of guilty on this charge.
With regard to the second offence of aggravated robbery, you were first charged in the ACT Magistrates Court on 11 June 2019 at which time you entered a plea of not guilty. The matter was adjourned to 2 July 2019, but on that date you did not attend Court. You next appeared in Court on 9 July 2019 at which time bail was refused and you were remanded in custody until 23 July 2019.
The matter was then adjourned on two further occasions until on 20 September 2019 you pleaded guilty to the charge and the matter was committed for sentence to this Court. This was not a plea of guilty at the earliest opportunity, but it was nevertheless a plea of guilty in the ACT Magistrates Court which had significant utilitarian value. I will reduce the other appropriate sentence by approximately 20 per cent in order to reflect your plea of guilty on this charge.
The facts
The 2017 aggravated robbery
With regard to the first offence of aggravated robbery on 18 October 2017, your
co-offender, Mr Fisher, met the victim at the city bus interchange and invited him back to an apartment in Turner. Your mother, Louise Campbell, was a lawful occupant of that apartment. You resided at that apartment with your mother, your girlfriend and your mother's partner, Shane Sebbens. You and your co-offender have known each other for over 13 years since you were at school.
After leaving the city interchange, Mr Fisher and the victim walked towards the Turner apartment where they came across you. The three of you then walked towards your mother's apartment. You then met up with your mother and your girlfriend. All five of you then went to your mother's apartment.
Some time before 1 pm, all five of you entered your mother's apartment and locked the front door. Mr Sebbens was in the apartment at that time. The victim sat down at the kitchen table. Mr Fisher armed himself with an aluminium baseball bat and approached the victim. He demanded that the victim hand over his money. Mr Fisher then used the baseball bat to hit the victim to the forehead, resulting in a laceration to the victim's forehead. The laceration started bleeding down the victim's face, onto his shirt and onto the floor.
Mr Fisher attempted to strike the victim again with the baseball bat, but the victim managed to block the blow and grabbed the bat. You armed yourself with a metal pole and a knife in your other hand. You used the pole to hit the victim to the forearm, threatened to kill him, and demanded that he give you his money. The victim took out his wallet and handed over about $150 before making his way to the front door and unlocking it. You followed the victim to the front door with the knife still in your hand. The victim opened the front door and ran outside and then called police with his mobile phone. The victim sustained a deep laceration to his forehead above his left eye and swelling to his forearm.
After the victim left, Mr Fisher used a mop to clean the blood off the kitchen floor. After mopping the floor, Mr Fisher, you, your mother, your girlfriend and Mr Sebbens all left the apartment and walked along Northbourne Avenue in the direction of Dickson shops.
The Basha inquiry
On 30 September 2019, you gave evidence in a Basha inquiry prior to you being called to give evidence by the Crown in the trial of your co-offender, Mr Fisher. You gave evidence of very limited assistance to the Crown. You professed a lack of recollection of the vast majority of the offence of 18 October 2017. You denied many of the facts set out in the agreed statement of facts tendered upon your plea of guilty. You claimed that you could not remember your co-offender hitting the victim with the baseball bat.
I have no doubt that you were lying and attempting to protect your co-offender.
Mr Fisher eventually entered a plea of guilty to a charge of aiding and abetting the offence of aggravated robbery, but I am satisfied that the evidence you gave played no part in his decision. In my opinion, you are not entitled to any reduction in sentence by reason of assistance to the authorities.
The 2019 aggravated robbery
Turning to the second offence of aggravated robbery, which occurred on
7 March 2019. In the early hours of that day, you were in company with an unidentified male co-offender in Civic, Canberra. At about 1.50 am near the intersection of
City Walk and Petrie Plaza, you and your co-offender came across the victim who was intoxicated. The two of you approached the victim and asked him for cigarettes. At that time you were pushing a bicycle. When he said that he did not have any cigarettes the two of you immediately attacked him.
A screwdriver was used to jab the victim in the chest and abdomen. During the attack, the victim was also struck in the chin with the screwdriver, leaving a small puncture wound. Both you and your co-offender yelled at the victim aggressively to hand over his property. The victim's bag was forcibly removed from him, breaking the shoulder strap in the process. His wallet was taken from inside the bag and his bank card was removed.
You then forced the victim to walk to a nearby ATM and you threatened to kill him if he did not give you his PIN number. The victim feared that he would be killed or seriously injured, so he gave you his bank card PIN number. Your co-offender tried to withdraw cash using the victim's bank card at the ATM.
Whilst this was occurring, the victim fell to the ground near the ATM and you struck him with the front wheel of your bicycle while your co-offender struck him to the face with his hand. Your co-offender forced the victim to his feet and made him use the ATM to make three separate withdrawals from his bank account totalling $1,900. You stood behind the victim to block his escape.
After taking the cash, you and your co-offender ran from the area. The victim then slumped on the ground near the ATM and used his mobile phone to call police. When police arrived, they found him disoriented and distressed. He was conveyed to hospital by ambulance to receive medical treatment. Police obtained CCTV footage of the incident and they were able to identify you from that footage. They were unable to identify your co-offender.
You have a criminal history [redacted]. [Redacted]. You have been convicted of multiple offences of failing to appear on bail undertakings. Most recently you were sentenced to one month's imprisonment in the ACT Magistrates Court for an offence of failing to appear, commencing on 8 July 2019 and expiring on 7 August 2019. Your criminal history disentitles you to any significant leniency in sentencing for the present offences.
Objective Seriousness
The victim of the first aggravated robbery, William Stevens, provided a
Victim Impact Statement which speaks of him continuing to feel unsafe in Canberra after the offence. For some time, he suffered severe headaches and also back pain. The headaches caused him nausea, blurred vision and some vomiting. He felt depressed and anxious. For months after the incident he experienced excruciating headaches and migraines.
He experienced a high level of anxiety and became depressed to the point that some days he could not leave his unit. When he did leave his unit, he felt hypervigilant. Since the incident he has had trouble sleeping, trusting people and going out in public. His mental health has deteriorated. He has been in and out of hospital suffering bouts of depression and other health issues.
After he was told by police that you had pleaded not guilty to the charge and he would be required to give evidence, it triggered his anxiety and depression. He felt angry when he heard that both you and your co-offender had pleaded not guilty and he was required to relive one of the worst experiences in his life. He says that the incident has changed his life dramatically and he does not feel as if he will ever be the person he once was.
In assessing the objective seriousness of the first offence of aggravated robbery, I take into account that there were two circumstances of aggravation. You were in company with a co-offender, and the two of you were armed with offensive weapons. You were armed not only with a metal pole, but also with a knife; a weapon capable of inflicting serious harm and even death. It appears that the offence was opportunistic. I am not prepared to find that you decided to commit this offence prior to the victim entering your mother's apartment.
You played an integral role in the offence by both threatening harm to the victim, and by inflicting actual violence on him. I accept the Crown's submission that the victim was in a vulnerable position because at that time he was in your mother's apartment and the front door was locked. He was in the presence of four people that he did not know. The amount of money which was stolen was not particularly great, although it was no doubt significant to the victim. I would assess this offence as in the mid-range of such offences.
A Victim Impact Statement from the victim of the second aggravated robbery refers to the continuing impact the offence has had on him. He had to walk past the area where he was assaulted every day, and as such was reminded of the offence. It made him feel physically sick. He is unable to leave his apartment at night time out of fear of being assaulted again. As a result of the assault, he can no longer live in Canberra and he is moving interstate to try to get on with his life. The offence has also affected his family. It took weeks for the swelling and cuts in his mouth to heal, and he still has a scar on his chin as a constant reminder of these events. He has sought professional psychological help and now needs to take antidepressants for depression and anxiety.
In assessing the objective seriousness of the second offence of aggravated robbery, I take into account that there were again two circumstances of aggravation. You were in company with your co-offender, and your co-offender had an offensive weapon, being a screwdriver. The Crown accepts that this offence was opportunistic. You played a crucial role in this aggravated robbery by both threatening harm to the victim and by inflicting actual harm on him. A slight wound was inflicted on the victim, although it appears that this was inflicted by your co-offender. The amount of money stolen, $1,900, was not insignificant. I would assess this offence as also in the mid-range of such offences.
Subjective Features
A Pre-Sentence Report dated 6 December 2019 was prepared for the sentence hearing. You have been known to ACT Corrective Services for a number of years. Since that time, you have been supervised on multiple community-based orders. Breach action was initiated on numerous occasions, primarily due to failure to report to appointments as directed. You have also served multiple custodial periods prior to being remanded in custody on 9 July 2019. You have not been subject to any significant disciplinary action in your current period on remand.
The Report notes that you are an Aboriginal man, born in Canberra and one of eight siblings. You resided out of home until the age of 10 years when you returned to reside with your mother. Your father resides in New South Wales, but you have not had any contact with him since you were 13 years old.
You have a four-year old child for whom you were a part-time carer when you were in the community. You reported that you are unsure of the current status of the relationship with your child’s mother. You reported a history of association with antisocial siblings and peers. You completed your education to primary school equivalent and you reported no employment history beyond a few months’ car detailing several years ago. You stated that you have not received any Centrelink income to support you due to a lack of ID.
You told the author of the Report that you commenced alcohol use from age 12 years and referred to your alcohol consumption from this time as problematic. You reported cannabis use also commencing age 12 years. You said that you commenced methamphetamine use at age 13 years and heroin use at age 17 years. You told the author of the Report that you had continued illicit drug use while in custody.
During your current period of remand, you have successfully completed a harm minimisation session and you have commenced the Alcohol Drug Awareness and Harm Prevention Training (ADAPT). You stated that you have applied for a residential rehabilitation program in New South Wales. You were referred to Court Alcohol and Drug Assessment Service (CADAS) on 20 May 2019. However, you were not seen by that service prior to entering custody.
A letter from ACT Health dated 31 October 2019 states that you have a history of personality disorder and agoraphobia. The letter also refers to a diagnosis of anxiety, borderline personality and antisocial traits. You were assessed by
Forensic Mental Health Services upon your induction into custody but there was no evidence of psychotic features. You have also completed a six-session anger management program while in custody.
The author of the Report expressed the opinion that you provided limited insight into your offending beyond acknowledging poor decision-making. The author stated that you did not provide any insight into the impact your offending had on the victims and you did not indicate plans to dissociate from antisocial influences. You were assessed as a high risk of general reoffending. I have no doubt that that risk could be reduced by your undertaking appropriate interventions in relation to drug and alcohol abuse, but your attitude to offending nevertheless remains a concern.
In the absence of any other explanation for your conduct, it is probable that you engaged in these offences in order to obtain money to purchase drugs and/or alcohol. There is no clear evidence that you were affected by either drugs or alcohol at the time that you committed these offences. A motive of a desire to obtain money to purchase drugs or alcohol is ordinarily not a matter which significantly reduces the objective seriousness of an offence or the moral culpability of an offender.
There is some flexibility in this principle where an offender has been addicted to alcohol or drugs at an early age, such they should not bear the responsibility for the consequences of that addiction to the same extent as they would if they had become addicted as an adult.
I accept that your commencement of the use of alcohol and drugs at an early age reduces your moral culpability for your offending to some degree. I also accept that the neglect that you suffered in your childhood continues to affect your life and your choices. You are currently 25 years of age. This is still relatively young, so that considerations of your prospects for rehabilitation are still important.
It is pleasing to note that you have made enquiries about residential rehabilitation placements when you have been in the Alexander Maconochie Centre (AMC), but it is concerning to note that you have continued illicit drug use in custody. Your initial pleas of not guilty to these charges and your unwillingness to give truthful evidence at the trial of your co-offender suggest that you are not particularly remorseful for these offences. Based on your criminal history, your continued use of illicit drugs and the absence of demonstrated remorse, I would assess your present rehabilitation prospects as poor.
Further considerations
In R v Henry [1999] NSWCCA 111; 106 A Crim R 149 (R v Henry), the New South Wales Court of Criminal Appeal handed down a guideline judgment regarding sentencing for offences of armed robbery in New South Wales. The maximum penalty applicable for the offence of armed robbery in New South Wales at that time was 20 years' imprisonment. The Court identified a number of factors or circumstances which were commonly found in sentence proceedings for offences of armed robbery. These circumstances were, at [162]:
(i) young offender with little or no criminal history;
(ii) weapon like a knife, capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.
The Court stated that such a typical offence should attract a sentence of between
four to five years' imprisonment for the full term.
The decision in R v Henry is not binding upon me, but it is persuasive. In the present case, of course, you differ from the typical offender in that you have a lengthy criminal history. The circumstances of each offence differ from the typical, in that actual violence was employed in each offence.
I have given consideration to all sentencing options available to me, including an Intensive Correction Order. In my opinion, no sentences other than immediate terms of imprisonment will be adequate to satisfy the requirements of sentencing, particularly the need to deter others and yourself from engaging in offences of this nature.
There is no suggestion that the alcohol and drug interventions available within the AMC are inappropriate or incapable of addressing your needs should you commit yourself to rehabilitation. While the present offences are entirely separate offences, it is still appropriate to impose a degree of concurrency to reflect the requirements of totality.
Sentence
For the first offence of aggravated robbery [SCCAN 2019/3739], I record a conviction and you are sentenced to four years and one month's imprisonment, commencing on 8 October 2019 and expiring on 7 November 2023. I have reduced this from
4 years and 10 months' imprisonment because of your plea of guilty.
For the second offence of aggravated robbery [SCCAN 2019/6092], I record a conviction and you are sentenced to four years' imprisonment, commencing on
8 May 2022 and expiring on 7 May 2026. I have reduced this from
five years' imprisonment because of your plea of guilty.
The aggregate sentence I have imposed is one of six years and seven months' imprisonment, commencing on 8 October 2019 and expiring on 7 May 2026.
I set a non-parole period of four years and two months' imprisonment, commencing on
8 October 2019 and expiring 7 December 2023.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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